DAVID ARVIN v. DEPARTMENT OF MILITARY AFFAIRS; HON. ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. RICHARD H. CAMPBELL, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: May 21, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001787-WC
DAVID ARVIN
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-33192
v.
DEPARTMENT OF MILITARY AFFAIRS;
HON. ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND;
HON. RICHARD H. CAMPBELL, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING AND ORDER DISMISSING APPEAL
** ** ** ** **
BEFORE:
KNOPF, KNOX, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
This is an appeal from an opinion and order by the
Workers’ Compensation Board (Board), dismissing an appeal from an
Administrative Law Judge (ALJ) as untimely.
The appellant urges
this Court to consider the merits of his constitutional challenge
to the two (2) year blackout period on motions to reopen
contained in KRS 342.125(3).
Finding that the Board correctly
determined that the appeal was untimely, we affirm, and likewise
dismiss the appeal.
The procedural history of his case is quite convoluted,
but it is necessary to a proper consideration of the issues
presented.
The appellant, David Arvin, was employed by the
Commonwealth of Kentucky, Department of Military Affairs (the
Department).
On August 2, 1994, Arvin sustained a work-related
injury to his head, shoulder, neck, hand and wrist.
Within
several weeks, he began experiencing headaches which gradually
became more severe.
By November 1995, his headaches worsened and
he had begun to suffer blackout spells to the extent that he was
unable to continue working even in his light duty position.
His
doctors attributed the blackout spells to a cervical condition
caused by the accident.
Arvin filed his claim for workers’ compensation
benefits and medical expenses on August 2, 1996.
Eventually, ALJ
James L. Kerr (ALJ Kerr) determined that Arvin’s cervical
condition was causally related to his work injury.
ALJ Kerr
found that Arvin suffered a twenty percent (20%) occupational
disability, and apportioned liability equally between the
Department and the Special Fund.
Finally, ALJ Kerr concluded
that Arvin was not entitled to temporary total disability (TTD)
benefits since “it appears that plaintiff ceased employment with
another employer for reasons other than his work-related injury.”
On appeal to the Board, Arvin raised the issues of
sufficiency of the evidence, the denial of TTD, and his average
weekly wage.
The Department and the Special Fund cross-appealed
the calculation of his average weekly wage.
In an opinion and
order issued on June 27, 1997, the Board found for Arvin,
-2-
reversing and remanding ALJ Kerr’s denial of TTD and his
calculation of Arvin’s average weekly wage.
During the pendency of the appeal, Arvin filed a motion
to reopen his claim based upon fraud and/or newly discovered
evidence.
The motion to reopen was held in abeyance while the
appeal was before the Board.
On August 26, 1997, Arvin filed a
“Request for issuance of Decision after Remand”, seeking a ruling
based upon the Board’s order.
On September 4, Arvin filed a
“motion for further evidentiary hearing prior to decision on
remand.”
On September 12, ALJ Kerr issued an order modifying
Arvin’s award in accord with the directions of the Board.
On
September 15, Arvin filed a motion “to reopen evidentiary record
to receive affidavits of plaintiff and Dr. Gilbert,” and an
additional motion to reopen the evidentiary record.
On October 2, ALJ Kerr issued an order overruling the
motion to reopen the record to receive additional evidence.
On
October 22, Arvin filed a “request for ruling on motion to
reopen.”
In response, ALJ Kerr issued a subsequent order on
November 20, advising Arvin that “all pending motions were
overruled by order of October 2, 1997."
Despite this order, Arvin’s motion to reopen was
assigned to an arbitrator for consideration.
On January 5, 1998,
the arbitrator determined that his motion to reopen was premature
because it had been filed less than two (2) years after the
original award or order.
KRS 342.125(3).
Based solely upon the
timing of the filing, the arbitrator overruled Arvin’s motion to
reopen.
-3-
Arvin sought a de novo review of this ruling by the
ALJ, arguing that the two (2) year limitation was
unconstitutional.
The de novo review was assigned to ALJ Richard
H. Campbell (ALJ Campbell), who concluded:
this “appeal” initiated through a request for
a de novo review can and must be dismissed on
bases other than the questioned
constitutionality of the current version of
KRS 342.125, to wit:
(a) Judge Kerr’s November 20, 1997,
order clarifying the order of October 2,
1997, overruled all pending motions; and as
disclosed by a review of the file, all
petitioner’s motions to reopen and requests
to reopen the evidentiary record were filed
and pending quite sometime in advance of the
October 2, 1997, order. Consequently, those
orders were dispositive of all such motions;
and, if he wished to challenge the
appropriateness of those orders, it was
incumbent upon petitioner to institute an
appeal to the Workers’ Compensation Board
within 30 days after the date of filing of
the November 20, 1997, order. As no such
appeal was instituted, Judge Kerr’s orders
overruling the motions to reopen and requests
to reopen the evidentiary record became final
December 24, 1997. Therefore, at that point,
there were no pending motions for Chief
Arbitrator King to review or act upon; and,
thus, his order of January 5, 1998, was moot
and of no effect.
(b) Even if one assumes there remained a
motion to reopen requiring an arbitrator’s
ruling, the doctrine of res judicata was
applicable thereto and required such motion
to be overruled on that basis, Judge Kerr’s
orders having overruled similar motions
containing the same allegations and offering
the same affidavits in support of those
allegations. Kentucky Wagon Mfg. Co. v
Esters, Ky., 297 S.W. 811 (1927), and Hysteam
Coal Corp. v. Ingram, Ky., 141 S.W.2d 540
(1940). Thus, Chief Arbitrator King’s
January 5, 1998, order effected the proper
disposition of the motion that was the
subject matter of his ruling, albeit for the
wrong reason.
ALJ Opinion and Order, March 2, 1998, pp. 6-8.
-4-
The Board affirmed the ALJ’s order on appeal, agreeing
with ALJ Campbell that ALJ Kerr’s prior order overruling the
motion to reopen was dispositive.
Arvin now appeals, asking this
Court to rule on the constitutionality of the statutory
prohibition on reopening within two (2) years of a prior award or
order.
We conclude that ALJ Campbell and the Board adequately
addressed the procedural issues.
Therefore we decline to reach
the merits of the constitutional issue.
Arvin alleges that ALJ Kerr could not have ruled on his
motion to reopen because he was not aware that it was pending.
There is some support in the record for this inference.
ALJ
Kerr’s order of October 2, 1997 only overruled Arvin’s motions to
reopen the record to introduce additional evidence.
Although
these motions were related to his motion to reopen, they involved
evidentiary issues and were separate from the motion to reopen.
Despite ALJ Kerr’s subsequent order, there is no indication that
the October 2 order sought to address the motion to reopen.
In addition, the Board refers to an August 5, 1997
directive from the Department of Workers’ Claims to ALJ Kerr for
consideration of the remand and previously filed motion to
reopen.
The Board concluded that since the directive
specifically mentioned the motion to reopen, ALJ Kerr was aware
of the motion to reopen and intended to rule upon it on October
2.
We are unable to find this directive in the record.
It is
inappropriate for the Board to rely upon evidence outside of the
record.
Nevertheless, these issues do not change the ultimate
result.
A motion to reopen may be filed while the same matter is
-5-
pending on appeal to the Board.
However, the ALJ does not have
jurisdiction to consider the motion to reopen while the appeal is
pending.
(1960).
Jerry's Drive In, Inc. v. Young, Ky., 335 S.W.2d 323
Upon remand by the Board, the ALJ is reinvested with
jurisdiction, and may rule upon the motion to reopen.
Therefore, ALJ Kerr was acting within his authority on November
20, 1997, when he stated that he was overruling Arvin’s motion to
reopen.
Furthermore, even if ALJ Kerr was unaware of the
specific motion to reopen at the time of his October 2 order, he
was subsequently made aware of that motion and notified Arvin
that he was overruling “all pending motions” in the November 20
order.
Although ALJ Kerr could and should have made clearer what
he was doing,1 his order of November 20 constituted a dismissal
of Arvin’s motion to reopen.
Since Arvin did not file his appeal
within thirty (30) days from ALJ Kerr’s final order, his appeal
is not timely and must be dismissed.
However, this Court feels the need to address one (1)
other matter regarding ALJ Kerr’s denial of Arvin’s motion to
reopen.
Both the opinion by ALJ Campbell and the opinion by the
Board imply that ALJ Kerr denied Arvin’s motion to reopen on its
merits.
Such an implication is not supported by the record.
ALJ
Kerr made no factual findings on the motion to reopen.
Furthermore, in its response to Arvin’s motion to reopen, the
Department specifically urged that the motion be denied because
1
Indeed, the Arbitrator could not immediately determine
from the record that ALJ Kerr had already ruled upon the motion
to reopen.
-6-
it had been filed less than two (2) years after the prior opinion
and award.
motion.
The Department did not address the merits of the
Therefore, we must presume that ALJ Kerr intended to
deny Arvin’s motion to reopen based upon KRS 342.125(3), and not
upon substantive grounds.
Consequently, the dismissal must be
deemed to be without prejudice to a timely filing of a motion to
reopen.
To hold otherwise would be to engage in an unfair
procedural shell game with workers’ compensation claimants.
Accordingly, the opinion and order by the Workers’
Compensation Board is affirmed, and this appeal is ordered
dismissed.
ENTERED:
May 21, 1999
/s/
Wm. L. Knopf
JUDGE, COURT OF APPEALS
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE DEPARTMENT
OF MILITARY AFFAIRS:
David B. Allen
Lexington, Kentucky
M. Kathryn Manis
Baird, Baird, Baird & Jones
Lexington, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND OF KENTUCKY:
Benjamin C. Johnson
Labor Cabinet
Louisville, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
